1. Validity of the General Conditions of Purchase
The following general terms and conditions of purchase (hereinafter also "AEB") apply to all contracts of Danubia Wood Trading GmbH (hereinafter referred to as "Customer" or "DWT") regarding deliveries of goods, provided that they have not been altered or excluded with the explicit written approval of DWT.
Conflicting or deviating terms and conditions of contractual partners, sellers, suppliers, producers (hereinafter referred to as "contractual partner") shall in no case constitute the contractual content of contracts with DWT and its contractual partners, unless DWT has given its written and explicit consent in individual cases.
General terms and conditions of the contractual partner do not become part of the contract even if DWT has not explicitly disagreed.
The unconditional acceptance of order confirmations and deliveries by the contractual partner does not in any case mean the acceptance of general terms and conditions of the contractual partner. Already with a delivery, the contractual partner acknowledges the exclusive validity of the purchasing conditions also for further orders.
The following terms and conditions of purchase are for use in business transactions between companies.
2. Acceptance of orders
Offers from contractual partners to DWT are binding. Contracts and other agreements become legally effective only after written confirmation by the client. If employees of DWT make verbal ancillary agreements that go beyond the written order, then these will require the written confirmation of DWT.
Requests from the contractual partner are non-binding until an order is placed either in the form of an explicit written declaration offer by DWT for the conclusion of a delivery contract or in the form of the express written acceptance of an offer by the contractual partner.
If the contractual partner makes an offer at the request of DWT, he is obliged to comply with the request of DWT with regard to quantities, characteristics of the goods as well as other information and in case of deviations, to draw attention to this expressly and clearly visible in the pre-resolved form.
If DWT orders by submitting an offer, it shall be effective for 14 days ("acceptance period") unless shorter deadlines are specified in individual cases. After expiry of the above period, DWT is no longer bound by its order.
Verbal and electronic offers and contracts will not take effect until they are confirmed by a written order (order confirmation) by DWT. Changes or additions to the orders also require written confirmation from DWT in order to be effective.
The acceptance of DWT′s offer by the contractual partner must be made within the acceptance period by written declaration ("order confirmation"). Until receipt of the written order confirmation, DWT may withdraw its offer or order confirmation.
If the order confirmation deviates from the offer/contract/order confirmation of DWT, a contract is only concluded if DWT has explicitly agreed to the order confirmation of the supplier in writing. Without such prior written consent, the payments or receipts of deliveries and services are considered as not confirmed.
3. Modified contracts/order confirmations
DWT may subsequently request changes to the agreed service, with an appropriate trade-off, if there are special reasons for this. This applies especially if DWT was unaware of the reasons for modifications at the time of completion of the contract and the changes are customary in the commercial sense or unreasonable for the customer in individual cases.
In the event of an above-mentioned change, the effects on delivery dates and any additional or reduced costs shall be regulated appropriately and by mutual agreement. However, price increases and delivery time extensions are only accepted if it can be proven that due to the modification, additional costs or delivery time extensions occurred and the contractual partner has informed DWT in writing immediately after changing the order.
4. Scope of delivery
The scope of the contractual partner′s obligation to perform results from the documents transmitted, such as material specifications, grading rules, drawings and service descriptions or, if they are missing, from the information in the offers and brochures of the contractual partner.
All deliveries must comply with the applicable industry standards or EU standards as well as the standards of the receiving country, unless explicit agreed in writing.
The agreed delivery dates are binding. The acceptance of the delivery date or the delivery period shall be determined by the receipt of the goods at the receiving point specified by the DWT or the time of successful acceptance.
In the case of early delivery, DWT may store the goods until the delivery date at the expense and risk of the contractual partner and until the ordered goods can be stored at the location provided by DWT.
The contractual partner must immediately notify any apparent delivery delays, stating reasons and the expected duration of the delay.
In the event of a delay in delivery, DWT shall be entitled, without prejudice to the other statutory claims, to claim compensation for non-performance after the expiry of a reasonable grace period set, to reduce the purchase price or to withdraw from the contract.
In the event of default by the contractual partner, DWT is entitled to demand a penalty of 0.5% to 3% of the net order value for each working day of the delay since the delay occurred. This does not exclude the assertion of further damage caused by delay. The contracting party can prove to the client that there may be less damage.
The contracting party can only rely on the absence of necessary documents to be supplied by the customer if he has requested the documents in writing with a reasonable grace period and has not received them within the above period.
Circumstances of force majeure shall only relieve the contractual partner in writing if he informs the customer in writing, without culpable delay, immediately after knowledge, indicating the exact circumstances and the probable duration of the time limit.
Subject to other proof, the values determined by the customer or the respective recipient of the goods during the goods receipt inspection are decisive for quantities, weights and mass.
The contractual partner guarantees the timely availability of the purchased item.
7. Fulfilment of orders by third parties
For the transfer of the obligations arising from the respective supply contracts to third parties, the consent of DWT is required, otherwise DWT can withdraw from the contract and demand any damage resulting from it. This shall not affect the right of the customer to pay damages.
8. Packaging, shipping and transfer of risk
Orders must be delivered in accordance with the desired delivery dates and quantity. Short or over-deliveries require separate agreements. Partial deliveries are not permitted unless separate agreed Under- or over-deliveries as well as partial deliveries require separate agreements. Deliveries smaller than a truck / wagon / container are not permitted. Any over-deliveries shall be returned to the registered office of the contractual partner at the expense and risk of the contractual partner.
Generally, all deliveries are based on ‘DAP, delivered at place’ terms, unless otherwise indicated in the order. The respective destination or place and Incoterm according to the contract/order confirmation is also the place of fulfillment.
A delivery note indicating the date (date of issuing and dispatch), the content of the delivery (number, signs and numbers of the packages) and the order number of DWT must be issued for every delivery. DWT is not responsible for any delays in processing caused by a missing or incomplete delivery note from the contractual partner.
The risk of accidental loss and accidental deterioration of the item shall pass to DWT upon handover at the place of performance.
If the contract concerns an unjustifiable cause to be produced by the contractual partner, the contractual partner only entitled to further rights if the client is obliged to cooperate and is responsible for the failure to cooperate.
The price stated in the order is binding. If the price has not been specified in the order and has not been agreed in writing, the prices of the contract of DWT shall be deemed to be the fixed price. All prices are inclusive of statutory value added tax if this is not shown separately or if the goods are intended for direct export. Unless otherwise agreed in individual cases, the price includes all services and ancillary services of the contractual partner as well as all ancillary costs (e.g. proper packaging).
Invoices must be submitted for each individual item with separately reported VAT, by each delivery including order number. All payments are made only to the contractual partner. The assignment of the dept to third parties is excluded. If DWT pays before official the transfer of risk, the transfer of ownership to DWT is given.
Any advance, deposit or interim payments do not imply recognition of the conformity of the deliveries/services. DWT is entitled to set-off and retention rights as well as the objection of the non-fulfilled contract to the legal extent. In particular, DWT is entitled to withhold due and overdue payments, as long as DWT is still entitled to claims caused by deficient deliveries by the contractual partner. DWT organizes the transport from the contractual partner to the customer, if not otherwise agreed.Übersetzung in Englisch.
10. Warranty, Liability
The contractual partner shall be liable for any kind of deficits in its delivery and in the case of other breaches of duty in accordance with the statutory regulations, whereby DWT can enforce all claims within three years from delivery. The contractual partner guarantees that the delivery has the agreed characteristics at the time of transfer of risk to DWT. DWT shall be entitled to withdraw from the contract and to compensation for damages and a supplementary performance in the event of even slight deviation from the agreed characteristics or minor impairment.
The contractual partner guarantees that all deliveries/services comply with the latest state of the art, the relevant legal regulations and the regulations and guidelines of public authorities, professional associations. In case a property has not been agreed separately, it is a defect if the product is not suitable for the use required stated in the contract. Furthermore, there is a material defect in addition to the statutory regulations if the delivery does not have the characteristics that the customer can expect according to the product description given by the party. It is sufficient for DWT to be provided with the product description after the conclusion of the contract (e.g. together with the goods).
The statutory regulations apply to the commercial obligation to investigate and to give notice of defects as follows:
The obligation of the customer or the addressee of the delivery to be inspected is limited to defects which are visible during the receipt of the delivery, including inspection of the delivery documents and the quality control of the customer or the addressee of the delivery in the sampling procedure (e.g. transport damage, incorrect and under- or over supply). If an inspection is required by law, there is no obligation to carry out an additional receiving inspection test. It is also important to what extent an investigation is appropriate and reasonable in a proper course of business, taking into account the circumstances of the individual case.
DWT shall immediately notify the contractual Partner of any obvious defects in the delivery in writing as soon as these defects are found in accordance with the circumstances of a proper course of business, but at the latest within 30 working days after receipt at the final destination (customer of DWT). This does not affect the obligation to notify hidden and later discovered defects within the same period from discovery.
If the contractual partner doesn’t fulfill his obligation to settle the defect – at the customer′s discretion – by remedying the defect (repair) or by delivering a defect-free item (replacement delivery) within a reasonable period of time set by the customer, the customer may eradicate the defect by himself and demand compensation from the contractual partner for the expenses required for this purpose as well as a corresponding advancement. If the supplementary performance by the contractual partner has failed or is unreasonable for DWT (e.g. due to special urgency, danger to operational safety or the threat of high damage), no time limit is required; the contracting party shall be informed immediately and given the opportunity to check himself or through a trustee whether there is a defect.
The rectification is considered to have failed after the first unsuccessful attempt. The contractual partner is liable regardless of fault for the fact that its delivery does not infringe industrial property rights as well as copyrights and other rights of third parties. If DWT is claimed by a third party for an alleged infringement of the law, the contractual partner is obliged to intitle DWT to release DWT from these claims at the first request. If, due to a serial failure of the product, the replacement of a whole series of contracted goods or of the products manufactured by the contracting authority in which the contract objects have been incorporated is necessary, for example because an error analysis is carried out in individual cases or is uneconomical, not possible or unreasonable, the contractual partner shall also reimburse the costs with regard to the part of the series concerned which does not show any technical defect.
11. Other liability of the contractual partner
If the contractual partner is responsible for a product failure, he is obliged to intitle DWT to the extent that DWT is exempted from claims of third parties, including the costs of the legal defense, in so far as the cause in the contractual partners side of control and organization. Besides, the contractual partner is liable in the external representation himself. The contractual partner shall also reimburse DWT for all other expenses arising out of or in connection with a claim by third parties.
12. Dealer regression
Pursuant to Section 933b of the Austrian Civil Code (ABGB), DWT may assert claims against the contractual partner for a period of 5 years if claims against DWT within the meaning of this section have been enforced.
13. Liability of the Client
The client is generally liable for himself and his vicarious agents only for intent and gross negligence.
The reciprocal claims of the contracting parties are time-barred in accordance with the statutory regulations, unless otherwise specified.
The limitation period for claims arising from warranty shall be deemed to have been agreed with 3 years between DWT and the contractual partner.
The business relationship with DWT and its customers may only be referred to in public communication of the contractual partner if DWT has agreed to this publication in writing.
Drawings, models, shapes, samples, profiles, standard sheets, print templates, gauges, other documents or tools provided by DWT or manufactured at the expense of DWT remain the property of DWT. They must not be passed on to third parties or used for purposes other than the fulfillment of the contract/order confirmation. They must be secured against unauthorized inspection or use. Subject to further rights, DWT may demand the surrender as soon as the contractual partner violates his legal or contractual obligations towards DWT. The contractual partner must carefully store the aforementioned items and secure them against fire, theft or other loss at his expense. He must return them to the client immediately after completion of the order without having to keep copies, duplicates, etc. The contractual partner is obliged to treat as a trade secret any non-obvious commercial or technical details which become known to him through the business relationship and not to make it accessible to third parties. Subcontractors and other third parties who fulfill or will fulfill obligations arising from the agreements between DWT and the contractual partner must be superseded all obligations in this regard, whereby the contractual partner is liable for compliance.
16. Retention of title
Ownership of the delivered goods shall be transferred to DWT without restriction and unencumbered upon delivery to the customer or to an addressee designated by him.
17. Place of performance, place of jurisdiction, applicable law, others
The exclusive place of performance for deliveries and services is the destination announced by DWT. If one is missing, the place of performance is Vienna.
The exclusive place of performance for payment obligations is the registered office of DWT.
The place of jurisdiction for all disputes is Vienna.
The law of the Republic of Austria shall apply exclusively to all legal relations between the contracting party and DWT, excluding the United Nations Convention for Contracts for the International Sale of Goods (CISG) of 11.04.1980 (UN Sales Law).
18. Severability clause
Should any of the above conditions be or become ineffective, this shall not affect the validity of the remaining terms and conditions. An invalid condition should be replaced with a term and condition that come closest to the economic purpose of the contract while respecting the mutual interests.
Vienna, November 2019
Subject to changes and updates